QuestionMy children and I were in a wreck in Sept. '06. A teenager driving extremely fast lost control of his car on a turn and hit my driver's side door.
My shoulder hurt immediately upon impact, and we notified the other insurance company that day.
Pain did not go away, and saw a Primary Care doc. 9 days later.
After several months of rest, PT, medicine, and an MRI showing scarring and sprains, the primary care doctor referred me to an Orthopedic Surgeon. He recommended more PT and a few other tests, and when that didn't work, recommended surgery as the next step. Got a second opinion, that doctor also recommended surgery, so I had surgery April '07. Recovery from the surgery has been really tough. I vomited for hours after the surgery, and then off and on for a few weeks from the pain and the pain meds. Before and after surgery, I have spent approximately 5 months in PT. And have been in pain since the accident. The doctor estimates the pain will last until 6-9 months post surgery.
Doctor released me July 12, 07 and is sending me a medical letter for the insurance company this week. My husband and I have collected my records and bills from each of the places involved in my care and I have a couple of questions before we submit them.
How much of my medical records should we give to the insurance company?
Will the settlement be based on the billed amounts, around $30,000? Or the adjusted amounts paid by my health insurance, around $13,000?
I'm self employed part time as a small business owner. To show my loss of income, can we use our gross sales as per our state sales tax forms we file or do we have to use our federal tax returns?
My 4 year old daughter was in the car and complained of a headache after the accident. She was seen by our primary care doctor also. They have offered $500 to settle her case. Should we accept?
Do we subrogate with our health insurance after we have our settlement or will the car insurance send the health insurance portion to the health insurance company?
This has been a really hard year for us and I appreciate your help so much.
AnswerHi Kristen,
Sorry to hear of your problems and also that your daughter was hurt. Let’s deal with her case first with a page from my website dealing with minor settlements of claims http://www.settlementcentral.com/page8017.htm of personal injury under age 18.
You will see that in a small case such as this, no court approval is needed, but still, you need to deposit her money into her blocked account. If that is the ONLY symptom she ever complained about, and since it has been 18 months, then it is probably OK.
I wonder what caused the headaches. Was it from a cervical strain? If she had any little complaints or fears expressed, then mention those IN WRITING and one would think that you could counter at $1,000.
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Now I will answer your questions in the order you asked them.
Q #1. How much of my medical records should we give to the insurance company?
Answer: Absolutely everything. Plus, unless you have some confidential information, I would OFFER some of the general practitioner’s past records to show that you had no prior problems. Your claim has SIGNIFICANT VALUE, and the adjuster needs to see everything.
Q #2. Will the settlement be based on the billed amounts, around $30,000? Or the adjusted amounts paid by my health insurance, around $13,000?
Answer: You are really asking TWO questions here: a) will the general damages award be figured on a formula that includes the higher or the lower amount; and b) irrespective of the answer to a), what amount will they actually pay to me, the higher or the lower?
As for a) above, this case is so serious that no formula is going to determine the value. But of course the total medical bills will come into play somewhere along the line. We just do not know how. But we also must insist in all of our demand letters and negotiations that the TOTAL AS BILLED IS THE REASONABLE AND NECESSARY TOTAL OF MEDICAL COSTS.
As for b), this depends upon how your state treats the so-called “collateral source rule”. In some states, you get only the net plus the cost to you for that insurance that reduced the bill (i.e. the employer’s cost AND your cost of the health insurance) for the past two years.
In most states, you can make the tortfeasor pay the actual amount billed. The theory is this: Why should they get a discount because you were blessed and bright enough to purchase or arrange for your own insurance? In my office, when we go to trial on a big case such as yours, we ASK THE DOCTOR TO PRODUCE A CLEAN SET OF BILLS, SHOWING NO DISCOUNTS WHATSOEVER. AND SHOWING NO PAYMENTS EITHER.
You could do the same for this company. They are going to want to pay only the net, but don’t even acknowledge that there is a net—MAKE THEM GO ON THE GROSS.
Q #3. To show my loss of income, can we use our gross sales as per our state sales tax forms we file or do we have to use our federal tax returns?
We are supposed to honor small business in this country, but this is just another example of how hard it is to do anything when you are self-employed, versus proving wage loss by just collecting a time and leave statement from an employer.
My choice here would be to fight for the gross. Send in the gross and fight for it on the grounds that it is necessary to pay for fixed overhead. The loss of income for a business should be the gross, IF THE OVERHEAD is pretty much fixed. Hence, if you had to pay for rent and heat and an employee’s time whether or not you were there, the gross is the measure of damages. The insurance company should not get to deduct your expenses since you must pay them in any event.
On the other hand, if your expenses were necessary to sell the product, but they were incurred ONLY WHEN EACH PRODUCT WAS SOLD, so that you were not losing at all by not having reimbursement for your expenses, then the net is the measure of damages. For example, what you lost out on was only the net profit, and that is what you should be paid.
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New topics: hiring an attorney instead of trying a do-it-yourself settlement; learning a bit about insurance claims settlements; policy limits; statute of limitations; and respond in writing
My website teaches people to settle their own claims. We sell six month memberships for $99.95 with a renewal for $5. But in your case, I might think better of going it alone and advise you to get an attorney. Just consider some of the topics I raised above, as well as the policy limits and statute of limitations concerns.
There could be some complex issues here. One example seems to be the simple approach you are taking to the doctor releaing you, as if that will end up being the end of your problems.
In my experience, the surgery is just part of the road to restoration of health because we often see a lot of problems that come up IN THE MONTHS AFTER the surgery.
I am just saying that your claim value might also dictate the use of an attorney, as I note below.
If you are firm in going it on a self-help basis, at least get as well informed as you can. We have complete information and forms and templates. But even for free you can learn a bit. Here are some pages to help you.
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Learn how to submit and settle your own personal injury insurance claims—DO IT YOURSELF SETTLEMENTS. Here is a series of pages that you can review. Take what makes sense to you and don't worry about the rest. Just get a flavor of how the system works without spending a ton of time right now.
Overview Tort Law Personal Injury Legal Claims http://www.settlementcentral.com/page3000.htm
Managing Medical Care After Auto Accident: http://www.settlementcentral.com/page0203.htm
Medical Care Documentation-the Key to Successful Personal Injury Insurance Claim Settlements http://www.settlementcentral.com/page0217.htm
Keys to a MAXIMUM INSURANCE INJURY CLAIM SETTLEMENT http://www.settlementcentral.com/page0089.htm
Use a Confidential Personal Injury Diary for TOP DOLLAR Insurance Claim Settlements http://www.settlementcentral.com/page0208.htm
Outline of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0190.htm
Detailed listing of questions to be expected from insurance claims adjuster http://www.settlementcentral.com/page0207.htm
By the way, did you know that getting an early settlement is a favorite trick of the insurance adjusters? Please see my website wherein we show Insurance Claim Adjuster Secret Tactics http://www.settlementcentral.com/page0092.htm
Responding to Settlement Offer From Insurance Claims Adjuster http://www.settlementcentral.com/page0244.htm
Do It Yourself Advantages, or do these claims need an attorney? As for an ATTORNEY, this does not seem to be a case that involves any legal issues in dispute nor any large or complex damages. Why should you pay someone one-third to do what you can do yourself? Do-It-Yourself Personal Injury Claims; Eliminate Personal Injury Attorneys' Fees; Save Thousands of Dollars Settling Your Own Insurance Claim http://www.settlementcentral.com/page3011.htm
Without having to join my website, I have given a lot of free information on handling insurance claims without having to join as a member. Read the module at "5 Easy Steps to Do-it-Yourself Insurance Claim Settlement" http://www.settlementcentral.com/page0102.htm
This stuff is not rocket science, but it will take some effort on your part to read and cut and paste letter examples and to communicate. But hundreds of people are doing it each day, and they are getting good results.
What if you get only two-thirds the way to your settlement goal? Well, you can get as big a settlement as you can and then turn it over to an attorney and save a lot of fees. Thus, you could go it alone just to get an insurance settlement offer, and then take that insurance settlement offer to a personal injury attorney, thus exempting the amount of the offer from her fees. Do It Yourself Personal Injury Settlement Offer Reduces Personal Injury Attorney Fees http://www.settlementcentral.com/page0109.htm
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The value of your claim is likely AT LEAST THREE TIMES THE MINIMUM LIMITS IN YOUR STATE. Hence, you VERY LIKELY HAVE A POLICY LIMITS http://www.settlementcentral.com/page0451.htm INSURANCE INJURY CLAIM. If the young man owns his car, the limits will be low. If his limits are low, then you have three other choices. First, of course is to look to your own Underinsured Motorist Coverage (UIM). Hopefully you purchased sufficient insurance to protect yourself from the negligence of others.
If your UIM limits are also fairly low, then the second thing is to consider whether or not this car could qualify within the so-called “family car doctrine” (if applicable in your state) such that the parents could also be liable.
The last resort is to sue the young man and hope that he has some assets that you can seize and liquidate.
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One last concern is to make sure you are protected to bring the lawsuit in the event you do not settle soon. This statute of limitations http://www.settlementcentral.com/page0452.htm free legal directory of information is the place to start. Just be aware that the statute of limitations could be a concern. If you are in a two year state, you need to get going on filing a lawsuit NOW. Hire an attorney to do it for you. MAKE HER DO THE LAWSUIT AND THE FILING AND THE SERVICE OF PROCESS. Do NOT let the service of process be delayed inasmuch as that is part of the means by which one ‘COMMENCES’ a lawsuit. It must be BOTH filed AND served. Most states allow one to lag up to 90 days behind the other.
Our members’ side has letters to send BEFORE you file and serve. The idea is to protect your relationship with the adjuster so you do not lose her and force the file to go to the legal department until you have given the adjuster a chance to settle.
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FINAL TOPIC—COMMUNICATE IN WRITING AND "DEMAND" NOT "ASK"
FINAL TOPIC: Effective communication with insurance claims adjusters. Establish Firm, Professional, and Positive Relationships With the Insurance Injury Claims Adjuster http://www.settlementcentral.com/page0059.htm
Always communicate with the adjuster in writing, showing your own analysis of value. It is OK I guess to have one call or so, but no more. Always have your information and ammunition in writing to give to the adjuster.
Let him know that you are FIRM IN YOUR RESOLVE to get what you are demanding (NOT "asking", since that invites a counter-offer, but instead "demanding" as fair and reasonable compensation) by asking him what the options are to resolve the matter fairly should he not agree to a reasonable claim value. In other words, let him know that you will go through with a court filing if need be.
Remember these tips, do your homework, print out your evidence, show resolve to get your fair settlement, and you will DO JUST FINE.
I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
